Timing and Audience as “Guardrails” for Political Purpose: Tenth Circuit Upholds New Mexico’s Pre‑Election Donor Disclosure for Mention‑Only Ads

Introduction

In Rio Grande Foundation v. Oliver, the U.S. Court of Appeals for the Tenth Circuit affirmed New Mexico’s donor-disclosure regime for certain pre‑election communications. The case squarely addresses the tension between First Amendment associational and speech rights and states’ campaign transparency interests in the wake of the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta, which sharpened “exacting scrutiny” by requiring narrow tailoring. The panel held that New Mexico’s 2019 amendments to the Campaign Reporting Act (CRA)—requiring disclosure for “independent expenditures” that refer to a candidate or ballot question within 30/60 days of an election—survive exacting scrutiny when read to cover only communications reasonably interpreted as political advocacy.

The plaintiff, Rio Grande Foundation (RGF), a 501(c)(3) nonprofit, alleged that the CRA’s disclosure requirements burdened its speech and chilled donations. RGF planned to mail its color‑coded “Freedom Index” (a legislative scorecard) within the 60‑day pre‑election window but refrained, citing the CRA. After an earlier appeal confirmed RGF’s standing to challenge donor disclosure (but not disclaimers), the district court upheld the statute, and the Tenth Circuit now affirms.

The decision crystallizes several important propositions:

Disclosure can reach “mention‑only” ads close to an election if they are reasonably interpreted as advocacy; express advocacy is not required.
Temporal and audience targeting—dissemination to the relevant electorate in the 30/60‑day windows—function as constitutional “guardrails” that evidence political purpose.
Under exacting scrutiny, a disclosure regime need not be the least restrictive means; it must be narrowly tailored, and thresholds, opt‑outs, and geographic/time limits can suffice.
For facial challenges, where a regime is narrowly tailored, plaintiffs may bear an evidentiary burden to show a reasonable probability of threats or reprisals—a reading drawn from recent Supreme Court dicta and embraced by the panel.

Summary of the Opinion

Writing for the court, Judge Federico affirms summary judgment for the Secretary of State. The panel first adopts a limiting construction of the CRA: although § 1‑19‑26(Q)(3)(c) reaches ads that merely “refer” to a candidate or ballot question and are disseminated in the 30/60‑day pre‑election windows, an “independent expenditure” is, by definition, an “expenditure” made for a “political purpose.” Reading the CRA as a whole, the court holds that subsection (3)(c) covers only communications that can reasonably be interpreted as advocacy—even if another reasonable interpretation exists—given the timing and targeted dissemination to the relevant electorate.

Applying “exacting scrutiny,” the court recognizes New Mexico’s important informational interest in letting voters know who is speaking about candidates or ballot questions shortly before an election. It holds the CRA substantially related to that interest and narrowly tailored, pointing to multiple constraints:

Monetary thresholds for reporting (expenditures totaling >$3,000 in non-statewide or >$9,000 in statewide races).
Donor disclosure thresholds that differ by funding source:
- Segregated account donors over $200 disclosed.
- General‑fund donors over $5,000 disclosed—unless they opt out in writing from funding independent expenditures or contributions.
Strict timing windows (30 days before a primary; 60 days before a general).
Dissemination only to the relevant electorate in New Mexico.
An opt‑out provision mitigating disclosure for donors who do not want to fund independent expenditures.

The panel distinguishes McIntyre v. Ohio Elections Commission (protecting anonymous handbills by a private citizen) and embraces Citizens United’s conclusion that disclosure may reach more than express advocacy. It also holds that RGF’s evidence of “chill” was speculative and insufficient to show a reasonable probability of threats or reprisals. In a separate concurrence, Judge Hartz expresses policy concerns about disclosure in ballot‑initiative contexts; Judge Eid dissents, arguing the regime is not narrowly tailored, particularly because it can require disclosure of general‑fund donors unconnected to a specific advertisement and because an earmarking‑only alternative would be less burdensome and more precise.

Analysis

1) Precedents Cited and Their Influence

Citizens United v. FEC (2010): The Supreme Court upheld disclosure for electioneering communications beyond express advocacy, emphasizing voters’ informational interests, especially shortly before elections. The Tenth Circuit relies on Citizens United to reject the argument that disclosure must be limited to express advocacy or its functional equivalent. This is central to upholding § (3)(c) for “mention‑only” ads in the pre‑election windows.
Americans for Prosperity Foundation v. Bonta (2021): The Court refined exacting scrutiny, adding a narrow‑tailoring requirement. The Tenth Circuit applies that requirement and concludes New Mexico’s regime is tailored through thresholds, timing, audience targeting, and donor opt‑outs. Notably, the panel leans on Bonta’s dicta to suggest that in facial challenges to a narrowly tailored regime, plaintiffs may bear an evidentiary burden to show a reasonable probability of threats or reprisals—a doctrinally significant move in this circuit.
Independence Institute v. Williams (10th Cir. 2016): The Tenth Circuit previously recognized that ads mentioning a candidate shortly before an election “are deemed sufficiently campaign‑related” to implicate disclosure interests. The opinion deploys this logic to find a substantial relation between § (3)(c) and New Mexico’s informational interests.
McIntyre v. Ohio Elections Commission (1995): Protecting anonymous leafletting by a private citizen, McIntyre is distinguished as materially different from large‑scale, high‑dollar, pre‑election communications regulated here. The court finds McIntyre’s rationale inapplicable to modern electioneering disclosure regimes like the CRA.
Buckley v. Valeo (1976): Sets the “reasonable probability” threshold for threats, harassment, or reprisals sufficient to negate disclosure. The panel finds RGF’s evidence falls short of Buckley’s standard.
John Doe No. 1 v. Reed (2010): Recognizes the balance between governmental informational interests and burdens on association. The court frames its burden analysis in Buckley/Reed terms.
Other supportive circuit decisions: Gaspee Project v. Mederos (1st Cir. 2021); Delaware Strong Families v. Attorney General (3d Cir. 2015); Center for Individual Freedom v. Madigan (7th Cir. 2012); Human Life of Washington v. Brumsickle (9th Cir. 2010); and National Ass’n for Gun Rights v. Mangan (9th Cir. 2019) bolster the constitutionality of pre‑election disclosure beyond express advocacy, emphasizing transparency and preventing evasion.
Sampson v. Buescher (10th Cir. 2010): Notes that informational interests may be weaker for ballot initiatives, especially with small dollar figures. The majority declines to parse candidate/ballot differences because RGF did not press them—an issue flagged in Judge Hartz’s concurrence as deserving future attention.

2) The Court’s Legal Reasoning

a) Statutory Construction: “Political Purpose” and § (3)(c)

The opinion’s threshold move is interpretive. The CRA defines an “expenditure” as a payment made for a “political purpose” (supporting or opposing a candidate or ballot question). An “independent expenditure” includes three categories, the third being § 1‑19‑26(Q)(3)(c): ads that refer to a clearly identified candidate or ballot question and are disseminated to the relevant electorate within 30/60 days of an election.

RGF argued (3)(c) sweeps any mere reference to a candidate/measure, regardless of purpose. The panel rejects this as textually untenable: because “independent expenditure” is built on “expenditure,” and “expenditure” requires “political purpose,” (3)(c) cannot reach communications devoid of advocacy. Reading the statute as a whole, the court holds:

§ (3)(a): Express advocacy.
§ (3)(b): Functional equivalent (no other reasonable interpretation than an appeal to vote for/against).
§ (3)(c): Communications reasonably interpreted as advocating for/against a candidate or measure, even if another reasonable interpretation also exists—where timing and targeted dissemination supply strong evidence of political purpose.

This limiting construction is crucial. It avoids the overbreadth RGF posited and directly supports the constitutional fit the court later finds.

b) Exacting Scrutiny: Substantial Relation and Narrow Tailoring

The court accepts the state’s informational interest as “sufficiently important” and finds a substantial relation because voters benefit from knowing who is speaking about candidates and ballot questions, particularly in the closing days of a campaign. Applying Bonta’s narrow‑tailoring requirement, the panel highlights five narrowing features:

Temporal limits: Only communications within 30/60 days are covered.
Geographic targeting: Only communications disseminated to the relevant New Mexico electorate are covered.
Expenditure thresholds: Disclosure triggers at $3,000 (non‑statewide) or $9,000 (statewide) in total independent expenditures.
Donor thresholds calibrated by account type:
- Segregated IE account donors over $200 disclosed.
- General-fund donors over $5,000 disclosed unless they opt out.
Opt‑out: Donors can avoid disclosure by requesting in writing that their funds not support independent or coordinated expenditures or contributions.

The court concludes these guardrails render the regime narrowly tailored without requiring the least restrictive means. While the dissent would require earmarking-only disclosure (and faults the CRA for covering general‑fund donors), the majority finds the CRA’s structure reasonable and adequately tailored under Bonta.

c) Evidence of Chilling and Harassment: Burden in Facial Challenges

The panel addresses RGF’s assertions of chill and potential harassment. Emphasizing Buckley’s “reasonable probability” standard, the court finds RGF’s showing speculative and self‑contradicted by deposition testimony. Importantly, the court reads recent Supreme Court dicta (Bonta) to mean that where a disclosure regime is narrowly tailored to an important interest, facial challengers may bear an evidentiary burden to demonstrate a reasonable probability of threats or reprisals for a substantial number of organizations. The court treats this dicta as persuasive and effectively binding, reinforcing the insufficiency of RGF’s proof.

d) The Disagreement on Narrow Tailoring

Concurring (Hartz, J.): Joins the opinion but questions the wisdom of disclosure in ballot‑initiative contexts, arguing it may invite ad hominem attacks and suppress unpopular views. He invokes the value of anonymity seen in the Federalist Papers and McIntyre.
Dissenting (Eid, J.): Argues Bonta’s narrow tailoring has “real teeth,” and § (3)(c) fails it because:
- It compels disclosure of general‑fund donors who may not support a specific ad.
- An earmarking‑only system would better match speaker to content and accomplish the state’s interest with less burden.
- Opt‑outs are inadequate and confusing where the boundary between “issue discussion” and “advocacy” is uncertain.
- The statute risks forced association by listing general‑fund donors alongside ad‑specific donors.
The dissent would hold § (3)(c) facially unconstitutional.

3) Impact and Forward‑Looking Considerations

a) Immediate Effects within the Tenth Circuit

States in the Tenth Circuit (including New Mexico, Colorado, Wyoming, Utah, Kansas, and Oklahoma) gain clear appellate support for pre‑election donor disclosure regimes that reach “mention‑only” communications, if structured with robust guardrails like timing, audience targeting, monetary thresholds, and donor opt‑outs.
Advocacy groups should expect disclosure obligations when spending above thresholds on pre‑election mailers, digital ads, scorecards, and report cards referencing candidates or ballot questions, especially when the content is reasonably interpreted as encouraging support or opposition.

b) Drafting Guidance for Legislatures and Agencies

Embed “political purpose” at the definitional level; use timing and audience targeting to identify communications most likely to influence voting decisions.
Adopt meaningful monetary thresholds and donor thresholds keyed to account type (segregated vs. general funds), plus an explicit opt‑out mechanism.
Maintain public‑access systems that are searchable but consider privacy‑sensitive practices consistent with statutory mandates.

Earmarking vs. general‑fund donors: The dissent’s critique tees up a potential line of challenge—whether disclosure must be limited to donors who specifically earmark funds for covered communications. The majority declines to require earmarking-only disclosure, but future cases may test that boundary, especially under Bonta’s tailoring requirement.
Ballot‑initiative exceptionalism: The concurrence underscores the possibility that disclosures tied to ballot measures (as opposed to candidate elections) may deserve a distinct analysis in light of Sampson and McIntyre. A later case could press that distinction.
Facial challenges and proof burdens: The panel’s adoption of Bonta dicta to allocate evidentiary burdens in facial challenges is significant. Expect litigants to develop more robust records of harassment and reprisals where they contend donor anonymity is necessary.

Complex Concepts Simplified

Independent expenditure: A payment by someone other than a candidate/campaign committee, not coordinated with them, for an “advertisement” that qualifies under the CRA (including express advocacy, the functional equivalent, or mention‑only ads within the pre‑election windows). It must be for a “political purpose” (supporting or opposing a candidate or ballot question).
Express advocacy vs. functional equivalent vs. mention‑only:
- Express advocacy: Uses explicit language urging a vote for/against a candidate or measure.
- Functional equivalent: No other reasonable interpretation than to vote for/against.
- Mention‑only (within 30/60 days): References a candidate/measure and, given timing and audience, is reasonably interpreted as advocacy—even if another reasonable view exists.
Exacting scrutiny: The test for compelled disclosure. The law must have a substantial relation to an important governmental interest and be narrowly tailored to that interest (but need not be the least restrictive means).
Narrow tailoring in disclosure: The law should fit its goals through targeted tools (e.g., high-dollar thresholds, timing windows, geographic relevance, opt‑outs), minimizing burdens on speech and association without requiring perfection.
Facial challenge: A claim that a law is unconstitutional in most or all applications—either because there is “no set of circumstances” under which it is valid or, in First Amendment cases, because a substantial number of its applications are unconstitutional relative to its legitimate sweep (overbreadth doctrine).
Opt‑out and segregated accounts: Donors can avoid disclosure by instructing in writing that their funds not be used for independent expenditures; groups can also use segregated accounts for IE spending, in which case lower donor thresholds apply specific to that account.

Practical Takeaways and Compliance Pointers

Assume that pre‑election communications referencing candidates or ballot questions and sent to New Mexico voters may be treated as advocacy for disclosure purposes if reasonably interpreted that way.
Track spending across the election cycle; disclosure may trigger once independent expenditures exceed $3,000 (non‑statewide) or $9,000 (statewide).
Consider using a segregated independent‑expenditure account to compartmentalize funds and simplify donor reporting. Ensure donor communications include a clear opt‑out option.
Train staff on timing windows and “relevant electorate” targeting; seemingly informational communications can cross into regulated territory during the 30/60‑day periods.
Document donor instructions and maintain records to honor opt‑outs; this can reduce compelled disclosure and mitigate risk.

Conclusion

Rio Grande Foundation v. Oliver meaningfully refines how disclosure regimes can constitutionally regulate “mention‑only” pre‑election communications. The Tenth Circuit’s limiting construction of § (3)(c)—requiring that such communications be reasonably interpreted as advocacy, with timing and audience as guardrails—anchors the statute’s constitutionality under exacting scrutiny. The decision affirms that robust but calibrated transparency measures, including monetary thresholds, geographic and temporal limits, and donor opt‑outs, can satisfy narrow tailoring post‑Bonta without resort to the least restrictive means.

The concurring and dissenting opinions underscore live debates that may shape future litigation: whether ballot‑measure disclosures warrant special caution, and whether earmarking‑only rules better serve informational interests while reducing associational burdens. For now, however, Rio Grande Foundation solidifies within the Tenth Circuit that a carefully designed disclosure law may constitutionally reach pre‑election communications that merely reference candidates or ballot measures when timing and audience indicate a political purpose.